it is confined to a forfeiture of the vessel, and does not legitimately involve a prohibition of persons, except when articles of commerce, like slaves. (1 Brockenbrough, 432.) Or finally, however, (for the power may extend under either view,) it is still a power concurrent in the States, like most taxation, and much local legislation as to matters connected somewhat with commerce, and is well exercised by them when Congress does not, as here, legislate upon the matter either of prohibition or of taxation of passengers. It is hence, that if this 9th section was a grant to prevent the migration or importation of other persons than slaves, it is not an exclusive one, any more than that to regulate commerce, to which it refers; nor has it even been exercised so as to conflict with State laws or with the statute of Massachusetts, now under consideration. This clause itself recognizes an exclusive power of prohibition in the States, until 1808. And a concur rent and subordinate power on this by the States, after that, is nowhere expressly forbidden in the Constitution, nor is it denied by any reason or necessity for such exclusiveness. The States can often use it more wisely than Congress, in respect to their own interests and policy. They cannot protect their police, or health, or public morals, without the exercise of such a power at all times and under certain exigencies-as forbidding the admission of slaves and certain other persons within their borders. One State, also, may require its exercise from its exposures and dangers, when another may not. So it may be said as to the power to tax importation: if limited to slaves, the States could continue to do the same when they pleased, if men are not deemed "im'ports." But to see for a moment how dangerous it would be to consider as vested a prohibitory power over all aliens exclusively in Congress, look to some of the consequences. The States must be mute and powerless.

If Congress, without a co-ordinate or concurrent power in the States, can prohibit other persons as well as slaves from coming into States, they can of course allow it without; and hence can permit and demand the admission of slaves as well as any kind of free persons, convicts, or paupers, into any State, and enforce the demand by all the overwhelming power of the Union, however obnoxious to the habits and wishes of the people of a particular State. Looking at an interference like this, it has therefore been said that under this section Congress cannot admit any persons whom a State pleases to exclude. (9 Wheat., 230-Justice Johnson.) This rather strengthens the propriety of the independent action of the State here excluding conditionally, than the idea that it is under the control of Congress.

Besides this, the ten dollars per head allowed here specially to be collected by Congress on imported slaves, is not an exclusive power to tax, and would not have been necessary or inserted if Congress could clearly already impose such a tax on them as "imports," and by a "duty" on imports, It would be not a little extraordinary to imply by construction a power in Congress to prohibit the coming into the States of others than slaves or of mere aliens, on the principle of the alien part of "the alien and sedition laws,” though it never has been exercised as to others permanently; but the States recommended to exercise it, and seventeen of them are now actually doing it. And equally extraordinary to imply, at this late day, not only that Congress possesses the power, but that, though not exercising it, the States have occupied it concurrently, or even in subordination to Congress. But beyond this the States have occupied it concurrently as to slaves no less than exclusively in respect to certain free persons, since as well as before 1808; and this, as to their admission from neighboring States no less than from abroad. (See cases before cited, and Butler v. Hoffer, 1 Wash. c. c., 500.) The word "migration" was probably added to "importation," to cover slaves when regarded as persons rather than property, as they are for some purposes. Or if to cover

others, such as convicts and redemptioners, it was those only who came against their will or in a quasi servitude.

In the Constitution, in other parts as in this, the word "persons" is used not to embrace others as well as slaves, but slaves alone. Thus, in the 2d section of the first article," three-fifths of all other persons," manifestly means slaves; and in the 3d section of the fourth article, “no person held to service or labor in one State," &c., refers to slaves. The word "slave" was avoided, from a sensitive feeling; but clearly no others were intended in the 9th section. Congress so considered it, also, when it took up the subject of this section in 1807, just before the limitation expired, or it would then probably have acted as to others, and regulated the migration and importation of others as well as of slaves. By forbidding merely "to import or bring into the United States, or Territories thereof, from any foreign kingdom, place, or country, any negro, mulatto, or person of color, with intent to hold, sell, or dispose of such negro, mulatto, or person of color, as a slave, or to be held to service or labor," it is manifest that Congress then considered this clause in the Constitution as referring to slaves alone, and then as a matter of commerce; and it strengthens this idea, that Congress has never since attempted to extend this clause to any other persons, while the States have been in the constant habit of prohibiting the introduction of paupers, convicts, free blacks, and persons sick with contagious diseases, no less than slaves; and this from neighboring States, as well as from abroad.

There was no occasion for that express grant, or rather recognition, of the power to forbid the entry of slaves by the General Government, if Congress could, by other clauses of the Constitution, for what seemed to it good cause, forbid an entry of everybody as of aliens generally; and if Congress could not do this generally, it is a decisive argument that the State might do it, as the power must exist somewhere in every independent country.

Justice Daniel expressed himself as follows:

This 9th section of the fourth article of the Constitution has, on a former occasion, been invoked in support of the power claimed for the Federal Government. The supporters of the alien law, passed in 1798, endeavored to draw from this very section a justification of that extraordinary enactment; and as their argument deduced from it is, perhaps, as cogent as any likely to be propounded at this day, it may be properly adverted to as a fair sample of the pretension advanced in this case, and of the foundation on which it seeks to plant itself. The argument alluded to was by a committee of the House of Representatives, and in these words: "That as the Constitution has given to the States no power to remove aliens during that period of the limitation under consideration, in the mean time, on the construction assumed, there would be no authority in the country to send away dangerous aliens; which cannot be admitted." Let the comment of a truly great man on these startling heresies expose their true character. "It is not," says Mr. Madison, "the inconclusiveness of the general reasoning on this passage which chiefly calls the attention to it. It is the principle assumed by it, that the powers held by the States are given to them by the Constitution of the United States; and the inference from this principle, that the powers supposed to be necessary, which are not so given to the State governments, must reside in the Government of the United States. The respect which is felt for every portion of the consummated authorities forbids some reflections which this singular paragraph might excite; and they are the more readily suppressed, as it may be presumed, with justice, perhaps, as well as candor, that inadvertence may have had its share in the error. It would be unjustifiable delicacy,

nevertheless, to pass by so portentous a claim without a monitory notice of the fatal tendency with which it would be pregnant." (Madison's Report.) The assertion of a general necessity for permission to the States from the General Government, either to expel from their confines those who are mischievous or dangerous, or to admit to hospi. tality and settlement whomsoever they may deem it advantageous to receive, carries with it either a denial to the former, as perfect original sovereignties, of the right of self-preservation, or presumes a concession to the latter, the creature of the States, wholly incompatible with its exercise.

This authority over alien friends belongs not, then, to the General Government, by any express delegation of power, nor by necessary or improper implication from express grants. The claim to it is essentially a revival of what public sentiment so generally and decisively condemned as a usurpation in the alien law of 1798; and however this revival may at this time be freed from former imputations of foreign antipathies or partialities, it must, nevertheless, be inseparable from-nay, it must be the inevitable cause of far greater evils-jealousy, ill-feeling, and dangerous conflict, between the members of this confederacy and their common agent.

The weight of authority seems to be, from a review of the opinions given, that the section of the Constitution in question is an exception to the power of Congress to regulate commerce, so that if it had not been introduced, the power to prohibit the importation would have resulted from the general grant to regulate commerce. 15 Peters' Rep., 514. For it is a rule of interpretation acknowledged by all, that the exception of a particular thing from general words proves that, in the opinion of the law-giver, the thing excepted would be within the general clause, had the exception not been made, and there seems to be no reason why this general rule should not be as applicable to the Constitution as to other instruments. 12 Wheaton Rep., 440. 12 Wheaton Rep., 440. The section, according to this construction, not only considers the right of controlling personal ingress or migration, as implied in the powers previously vested in Congress over commerce, but acknowledges it as a subject of revenue. Wheaton, 450. Congress having the exclusive power to regulate commerce, and the latter, under the interpretation of the ninth section, 1 including an intercourse of persons as well as the importation of merchandize, the conclusion seems to be irresistible that Congress has the sole power over migration of foreigners as well as importation of goods, and that the States cannot tax immigrants for the purpose of paying expenses incident to the execution of their police laws. But the States have reserved to them the internal police power, which, in common parlance, often relates to something with public morals, and in that limited view would embrace the subject of pauperism, (16 Peters, 625,) whilst in law the term is much broader, and includes all legislation for the internal policy of a State. 4 Black. Comm., ch. 13

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CHAPTER XII.

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INTERNAL POLICE POWER OF THE STATES.

THOUGH a great difference of opinion is manifested in the written opinions of the Judges of the Supreme Court, as to the constitutionality of the passenger laws of New York and Massachusetts, which imposed a tax, and which were under consideration in the cases of Smith v. Turner and Norris v. Boston, no such difference existed among them, as to the power relating to internal police being reserved to the States, to be exercised by them even to the entire exclusion of certain classes of persons. This principle was fully established in the case of The City of New York v. Milne, 11 Peters' Rep., 102, which came before the United States Supreme Court, on a certificate of division in opinion of the Judges of the Circuit Court of the United States for the Southern District of New York. The facts of the case were these: By one of the provisions of an act, passed by the New York Legislature, in 1824, the master of every vessel arriving in New York was required, under certain penalties, within twenty-four hours after his arrival, to make report of the names, ages, and last legal settlement of every person on board of his vessel, &c. New York city brought an action of debt under this law against the master of the ship Emily, for the recovery of certain penalties imposed by the act, The defendant demurred and alleged that the act assumed to regulate trade and commerce, and was therefore unconstitutional. The Supreme Court decided otherwise, however, and pronounced the act to be constitutional. In delivering the opinion of the court, Justice Barbour said:

The power of New York to pass this law having undeniably existed at the formation of the Constitution, the simple inquiry is, whether by that instrument it was taken from the States, and granted to Congress; for if it were not, it yet remains with them.

*

Now, we hold that both the end and the means here used, are within the competency of the States, since a portion of their powers were surrendered to the Federal Government. Let us see what powers are left with the States. The Federalist, in the 45th number, speaking of this subject, says: the powers reserved to the several States will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people; and the internal order, improvement, and prosperity of the State. And this court, in the case of Gibbons v. Ogden, 9 Wheat., 203, which will hereafter be more particularly noticed, in speaking of the inspection laws of the States, say they form a portion of that immense mass of legislation which embraces every thing within the territory of a State, not surrendered to the General Government, all which can be most advantageously exercised by the States themselves. Inspection

laws, quarantine laws, health laws of every description, as well as laws for regulating the internal commerce of a State, and those which respect turnpike roads, ferries, &c., are component parts of this mass.

Now, if the act in question be tried by reference to the delineation of power laid down in the preceding quotations, it seems to us that we are necessarily brought to the conclusion, that it falls within its limits. There is no aspect in which it can be viewed, in which it transcends them. If we look at the place of its operation, we find it to be within the territory, and, therefore, within the jurisdiction of New York. If we look at the person on whom it operates, he is found within the same territory and jurisdiction. If we look at the persons for whose benefit it was passed, they are the people of New York, for whose protection and welfare the Legislature of that State are authorized and in duty bound to provide.

If we turn our attention to the purpose to be attained, it is to secure that very protection, and to provide for that very welfare. If we examine the means by which these ends are proposed to be accomplished, they bear a just, natural, and appropriate relation to those ends.

*

We choose rather to plant ourselves on what we consider impregnable positions. They are these: That a State has the same undeniable and unlimited jurisdiction over all persons and things, within its territorial limits, as any foreign nation, where that jurisdiction is not surrendered or restrained by the Constitution of the United States; that, by virtue of this, it is not only the right, but the bounden and solemn duty of a State, to advance the safety, happiness and prosperity of its people, and to provide for its general welfare, by any and every act of legislation which it may deem to be conducive to these ends; where the power over the particular subject, or the manner of its exercise is not surrendered or restrained, in the manner just stated; that all those powers which relate to merely municipal legislation, or what.may, perhaps, more properly be called internal police, are not thus surrendered or restrained; and that, consequently, in relation to these the authority of a State is complete, unqualified, and exclusive.

We are aware, that it is at all times difficult to define any subject with proper precision and accuracy; if this be so in general, it is emphatically so in relation to a subject so diversified and multifarious as the one which we are now considering.

If we were to attempt it, we should say, that every law came within this description which concerned the welfare of the whole people of a State, or any individual within it; whether it related to their rights or their duties; whether it respected them as men, or as citizens of the State, or of any individual within it; and whose operation was within the territorial limits of the State, and upon the persons and things within its jurisdiction.

Now, in relation to the section in the act immediately before us, that is obviously passed with a view to prevent her citizens from being oppressed by the support of multitudes of poor persons, who come from foreign countries without possessing the means of supporting themselves. There can be no mode in which the power to regulate internal police could be more appropriately exercised. New York, from her particular situation, is, perhaps, more than any other city in the Union, exposed to the evil of thousands of foreign immigrants arriving there, and the consequent danger of her citizens being subjected to a heavy charge in the maintenance of those who are poor. It is the duty of the State to protect its citizens from this evil; they have endeavored to do so, by passing, amongst other things, the section of the law in question. We should, upen principle, say that it had a right to do so.